More on Obama and the Warren Court:
Stephen Henderson, Deputy Editorial Page Editor of the Detroit Free Press, writes in to note that Barack Obama gave a fairly detailed answer a few weeks ago to the Free Press editorial team on the question of what kind of Supreme Court Justice he would want to appoint:
Q: You voted against confirming both Justice Alito and Chief Justice Roberts (for the U.S. Supreme Court). You said you want justices who are passionate. ... You taught constitutional law for 10 years, so I'm wondering if you can tell us, outside the context of the current court, what justices would you use as models for your pick?
A: Well, it depends on how far you go back. I mean, Justice (John) Marshall was pretty good ... but those were some different times. There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, (Thurgood) Marshall. But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today.
Generally, the court is institutionally conservative. And what I mean by that is, it's not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn't give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.
I'm not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. ... So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.
I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.
That, I think is the kind of justice that I'm looking for -- somebody who respects the law, doesn't think that they should be making law ... but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice.
That's the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up. That's inherently the role of the court. And if somebody doesn't appreciate that role, then I don't think they are going to make a very good justice.
Just when I start thinking that Obama is a pretty sharp guy (notwithstanding his socialist impulses), he descends into this kind of ridiculous blather.
why is this blather? I think what he's saying is that the courts do, and should, protect the minority from majority (tyranical) rule when the constitution so requires. Protecting "the person with the unpopular idea" seems like a very uncontroversial observation about 1st Amendment jurisprudence.
Last I checked, reasonable people could differ. Even some of the posters here have argued for a constitutional presumption in favor of liberty, at least in the interpretation of federal laws. Given the political environment in which the BoR and the 14th Amendment were adopted, there's a pretty strong argument to be made that the intent was to protect the rights of the politically powerless against the powerful.
Or what Obama said.
That looks like a pretty long list of "the minority, the outcast, the person with the unpopular idea." So, more Scalias are in the offing?
David Irving as a Justice?
In fact, all 10 Bill of Rights Amendments seem to follow a "little person versus powerful government" motif.
Huh. Apparently Obama is not immune to hypocrisy.
I would say the Bill of Rights takes more of a "state sovereignty versus the federal government motif." After all, states still had official churches and all sorts of ways to annoy the little person. The Bill of Rights just reserved such obnoxious behavior to state governments instead of the feds.
So no, the founders were NOT so keen on protecting the person with the unpopular idea.
Of course it's satire. Because despite Obama potentially agreeing with these decisions (although I am not so sure on Kelo), he did not list Scalia as a model. He listed Souter and Breyer. And how did those vote in the cases cited?
Kyllo - with the majority and for the Defendant (both Breyer an Souter)
Kelo - with the majority and for the City (both)
Flag burning - Neither was on the Court
Apprendi - Breyer in dissent throughout, Souter with the majority
Hamdi - Breyer and Souter both pro-govt. (Breyer with plurality, Souter with a concurrence).
Who is most likely to protect all ten rights in the constitution such as the 1st (campaign finance), 2nd Heller) 4th, 5th (Kelo)5th (double jeorpardy) vs ignore some and create others.
No, you can't.
President Obama will be a refreshing change in the White House. The country will be just fine.
To be sure they weren't as pro-govt as Thomas, but they certainly did not take the position advocated by Scalia that as a US citizen Hamdi is not subject to military detention and is entitled to a full panoply of habeas protection.
But the establishment clause states' rights argument works because state and federal creation of an established church is zero sum. E.g. If the United States declares a national church, the states are deprived, under the supremacy clause, of an ability to create state churches.
How does that analysis apply to amendments 3-8? To take one example, the United States depriving someone of his or her due process doesn't prevent a state from also depriving that person of due process. Same with quartering soldiers, denying a jury trial, imposing an excessive punishment, etc.
It seems to me that a minimum of six Bill of Rights amendments are about individual rights.
DrGrishka,
No one doubts that Scalia's approach sometimes leads him to liberal results, though he can be unbearable smug about it. Likwise, I could pick and choose from Stevens resume and he'd look like a dream appointment for the right.
Hm. A President Obama might appoint the kind of nutjob who wrote this:
We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
This is one of the oft-forgotten lessons of the 60's and 70's. For instance, in Alabama, the legislature failed to redistrict for decades which, combined with some other features of government, put ultimate legislative control in the hands of 12-15% of the population. By the time the Federal courts intervened and forced one-man-one-vote on them, a (probably black) voter in Montgomery had 1/25th the vote of a (probably white) voter in rural AL.
Do I relish the thought of Federal Courts mandating changes in the constitutional structure of the states? Absolutely not. Can the government of Alabama claim any legitimate State sovereignty when elected by a small fraction of the populace? Also no. The latter problem outweighs the former by a huge margin.
He's not talking about political or numerical minorities. He's talking about individual racial minorities. And as many have noted, Obama's oft-repeated aspiration for his judicial appointments means they'll have to violate the oath they'll take upon swearing in.
I'm not sure why people have this impulse to deny Obama the plain meaning of his actions and words.
God help us if AMK retires tho, who will glue together those 4 cases?
You think the plain meanings of the phrases "the vulnerable," "the minority," ,"the outcast," "the person with the unpopular idea," and "the journalist" are ALL "racial minority?"
Of course not. I'm referring to his "the minority" reference.
To clarify: The two words "the minority" used by Obama in the excerpt above refer to racial minorities. With those two words, and contrary to other hypotheses offered in this thread, Obama was not talking about generalized political minorities.
Way to show how to read "the plain meaning of his words."
Apparently it involves adding adjectives. Interesting canon of interpretaton, that.
Jews and Muslims in America aren't minorities? Disabled people aren't a minority?
Apparently, Roberts and Alito's position wasn't too distasteful for him. Who knows, Obama speaks in such generalities he could mean anything.
How about asking Obama the following question:
Why can't affirmative action be based solely on socio-economic status? In other words, why should minorities who've had educational opportunities and solid upbringings be given a break over whites and asians (who are also a minority)? And within the subset of middle and upper class minorities who are cut some slack on grades and entrance exams, etc., why should blacks be given more of a break than Latinos?
So, xx, you really think that a Holocaust Denier of the worst sort -- like David Irving --
?
I can think of very few people who more closely match that description than that unrepentent analwipe. But, somehow, I don't believe that is who BHO had in mind when he implied that the Court's inherent role includes putting a finger on the scales of justice to help certain people.
Stevens seems very healthy. So do Souter, Breyer, Alito and Roberts.
My guess is that no one retires and that if there's a vacancy it will be because, like Rehnquist, someone went out feet first.
Though in America, unlike some places, a David Irving is free to deny the Holocaust all he likes, and I would hope that a justice nominated by Obama would agree with that.
I think Stevens &Ginsburg would retire early enough to assure that Obama would get to pick their successor. They might also want to do so before any Senate losses in the 2010 election.
I do hope that, if elected, Obama nominates some younger folks; the GOP has been much smarter about that than Clinton ever was.
He would lose some Blue Dog Dems if he nominated anyone far-out.
I don't know if Obama thinks that the Court should protect political minorities even when their views are abhorrent. Though, if he does, I would speculate that he would defend that position not on the grounds that he wants to aid the people who have abhorrent viewpoints, but on the grounds that the only just, effective and/or administrable way to protect non-abhorrent minority viewpoints is to adapt content-neutral protections for all viewpoints.
I think it's widely agreed that he was lying. Not that I care much one way or the other.
Lots of words here, but "detail?" I don't know.
It strikes me that there's a reason Kerr and Bernstein haven't reacted half as strongly to these kinds of statements as people who know little to no legal theory; when Obama talks about law, he tends to talk as a professor of law, not as a layman, and in those contexts certain things are pretty well understood. One of them is the notion of protection of a discrete minority in order to preserve the validity of process as a justification for judicial review, especially at the level of the Supreme Court.
The good news is that any appointments Obama makes are likely to replace unrepentant liberal activists like Ginsburg or Stevens.
I can't recall that actually happened. The most awkward oaths must have been those of Lincoln by Taney and Jefferson by Marshall.
How can someone be lying when stating their opinion on something? If Obama says he agrees with the decision then, ipso facto, he agree with the decision.
Is this some sort of new word game I'm not getting?
the radio station that did the Warren interview posted three more old interviews with Obama on various constitutional questions (redistricting, slavery and the Constitution, and the right to vote). Might want to post and/or blog about them. I'm listening to the redistricting one and am so far struck by his surprisingly moderate take on Shaw v. Reno.
http://apps.wbez.org/blog/?p=639
Yeah, because Obama has spent his whole adult life obsessed with Jews and Muslims and disabled people, and derived (and still derives) his strongest political support from Jews and Muslims and disabled people, and wrote a memoir at age 34 chronicling his journey of self-discovery to his identity as a Jew or Muslim or disabled person, and changed the name he went by to be more obviously identified as a disabled person, and married a woman whose (illiterate) college thesis focused on those groups, and sat in church for twenty years while his spiritual mentor spread Jew/Muslim/Disabled-liberation theology . . .
Because that would be Marxism, my friend.
Little guy homeowners versus big development corporation. And the liberals on the Court rule in favor of the big guys.
Admittedly, simplifying things.
On the whole, I don't think that Scalia though is a good model judge. He has a strong tendency to put his ideals in front of his legal analysis which means that although he is exactly right in some cases (the ones mentioned above) he is exactly wrong in others (Lawrence v. Texas for example). In this case he strikes me as very much an activist and probably the only one on the court (Thomas's dissent in Lawrence was based on his own Constitutional views which, though I disagree with them, did not leave him open to charges of activism, but this was not the case with Scalia). In this case, I think it is great to have exactly one judge on the court like him, but I would not want to see a bunch of Scalia clones on the court.
Interestingly, my favorite justices on the court today, though they are by no means infallable, are Roberts (whose impact on the court has I think been quite positive), Stevens (in particular, I liked his approach in the recent copyright term extension case, and the opinion he joined Scalia on in Hamdi), and Suiter (for all his faults, his opinion in Hamdi really was a dissent and a concurrence with Scalia/Stevens, but he felt obligated in order to break the deadlock to side with the plurality). I don't like Alito particularly, and the other justices sometimes tend to lose me entirely.
"You voted against confirming both Justice Alito and Chief Justice Roberts for the U.S. Supreme Court. Have you disagreed with any of their opinions, and if so, why?"
Well, I'm sure no one else cares, but the answer appears to be no. Warren was confirmed by a voice vote with only about half the chamber in attendance, so I don't suppose Kennedy opposed it.
Obama is such a liar when he talks about the vulnerable or the outcast. He doesn't know the first thing about those people who are vulnerable or outcast. He is a proud supporter of infanticide, his campaign followers hate Sara Palin for giving birth to a baby they would've gladly aborted - a Downs Syndrome Baby, and they are angry that Palin's daughter hasn't aborted her kid.
The vulnerable and outcast? Please. Obama wouldn't want his kids "punished with a baby." He loves infanticide.
His justices will make it legal to murder kids who survive botched abortions. Just watch. There'll be a case about it. Or someone will sue to overturn the federal law. And his left-wing judge will declare that a woman's intent to have an abortion overrides any human rights one might possess after birth. These are the new days of Herod.
Oren, easily. Your wife repaints the house; you lie and say it's nice (your opinion) so as to not make her angry, even though you really hate it. Similarly, I don't think Obama really disagrees with Kennedy v. Louisiana. He filled out a questionnaire in his first campaign for the State Senate where he said that he didn't support capital punishment. ("Do you support capital punishment: No.") Obama's people say he didn't fill it out and an aide mischaracterized all his positions, but his handwritten notes are on it. Of course, his views may have changed, but I'd be surprised if he's really gone from being against capital punishment in any circumstances to thinking states ought to be allowed to execute child rapists.
http://www.politico.com/news/stories/0308/9269.html
Wasn't the particular challenge of segregation the result of The Supreme Court saying Separate But Equal was a-ok and Constitutional? Not to mention approving all the poll tax and literacy test stuff?
DangerMouse, ever hear of a constitutional amendment?
Well, given that he supported the decision in Heller that the constitution gives you an individual right to own a gun, and incorporation in general, he probably does. Whether he believes that there are reasons to still restrict guns as we restrict some forms of speech, and how far you two would get before disagreeing, is the real question.
Wouldn't that actually reinforce his point that at extraordinary times extraordinary measures might have to be taken to break the logjam of political powerlessness and prior precedent? (Too many P's there, I know)
Wow. Where's the real "hate" in this sentence?
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He had a chance to support the decision before it was handed down (55 Senators signed an amicus brief), and he did not.
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That he "supported" it after the fact is just his lyin' azz reacting to facts he can't deny.
Obama "I believe [something that is plausibly pretty moderate, or at least nuanced and reasonable]."
Commenters: "Obama's a dirty liar and a socialist, he's just lying when he says he's moderate, I know how he REALLY thinks."
The role of the courts is to decide cases impartially by applying the facts at hand to the law. If the law, be it constitutional, statutory or common, requires that the unpopular or vulnerable party loses, the court should follow the law. Protecting people who "don't have a voice" is not the courts' job. If those voiceless people want to say something, the courts can be helpful by impartially enforcing their rights. The courts are not, and should not be, social workers, community organizers or politicians.
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On Heller and the right of the people to keep and bear arms, he's made statements and he has associations that are contradictory. The vast majority of his his record is on the "gun grabber" side of the balance. One data point, "support the Heller decision (plus reasonable restrictions, and I get to decide what 'reasonable' means) on the opposite side.
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Observers are stuck with weighing conflicting and/or vague statements. My personal conclusion is that he is hostile to any reading and application of the 2nd amendment that resembles even remote accuracy.
Yes, I'm glad that persons like Irving have 1st Amendment rights in the U.S. Among other things, the rest of us have the same rights and so can expose them.
However, I don't think that is what BHO had in mind. He was talking in leftist code. There's rightest code as well. If someone shows up at your door, wearing a red arm band with a white circle, in which is what looks like an up-side-down peace symbol, and talks about "Our Traditions", you don't have to wait for him to show you his Aryan Brotherhood membership card before tossing him off your porch.
Don't think that the leftest code isn't just as tranparent. BHO wants to Justices and Judges who don't even pretend to be "color-blind" -- provided the bias is PC approved.
I can't imagine either of them even understanding this type of answer, let alone giving one like it.
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Which office?
"I can't imagine either of them even understanding this type of answer, let alone giving one like it."
Here's some help.